Tuesday, June 12, 2018
Yesterday, I explained that qualified immunity doctrine looks nothing like the common law in existence in 1871, when Section 1983 became law. But the Court appears to recognize this fact—it acknowledged decades ago that it had "completely reformulated qualified immunity along principles not at all embodied in the common law." Today, the Court defends qualified immunity doctrine not as a relic of the common law but instead as an instrument to achieve various policy goals—protection from personal financial liability, protection from the burdens of discovery and trial in insubstantial cases, and protection against the threat of overdeterrence of officers on the job. Yet, as I argue in a forthcoming article, excerpted here, all available evidence indicates that qualified immunity doctrine fails to serve these policy goals.